Author: Hal Marcus, Director, Global Legal Evangelist

The legal validity of electronic signatures in the United States is well established, having been codified in the UETA and ESIGN acts around the start of the millennium. For the vast majority of use cases and in nearly all jurisdictions, a properly executed electronic signature carries the same legal effect as a “wet” signature.

Yet, regardless of the type of signature applied, contract disputes can still trigger evidentiary questions as to the identity of the signers and the intent of the parties, which may affect the enforceability of the underlying agreement.

Leveraging DocuSign’s Signature service can help address such evidentiary questions quickly and efficiently, as a growing body of US case law is demonstrating.

Case in point: In IO Moonwalkers, Inc. v. Banc of America, 814 S.E.2d 583 (2018), the North Carolina Court of Appeals relied on a DocuSign audit trail in affirming a summary judgment as to the enforceability of an agreement in a dispute over credit card “chargebacks” (costs resulting from fraudulent charges).

Plaintiff IO Moonwalkers (“Moonwalkers”), a manufacturer of hoverboard scooters, argued that it had not reviewed or signed its credit card services agreement with Defendant Banc of America Merchant Services (“BAMS”) and did not intend to be bound by its terms.

Faced with a DocuSign Certificate of Completion for the transaction, Moonwalkers posited—with no supporting evidence—that the agreement may have actually been signed by an employee of BAMS without Moonwalkers’ authorization.

The lower court had determined that Moonwalkers had ratified the agreement, i.e. bound itself to the agreement via a series of actions showing that it was acquainted with the contract terms and intended to be bound by them. It granted summary judgment to BAMS on this basis with no need to analyze any possible question about the identity of the signer.

In affirming the lower court’s ruling, the Court of Appeals detailed the DocuSign signing workflow and relied on the DocuSign audit record as dispositive evidence not only that a signature had been executed, but also that Moonwalkers had in fact received and taken steps to review the agreements, including the precise times that such actions had occurred:

“Were this a more traditional contract negotiation, in which the parties had mailed proposed contracts back and forth, a sworn affidavit stating that Moonwalkers never reviewed or signed the contracts might be sufficient to create a genuine issue of material fact with respect to the knowledge element of ratification. But this case is different because BAMS presented evidence from the DocuSign records indicating that it sent the merchant services agreements to Moonwalkers at the company email address. BAMS also submitted evidence from the DocuSign records that someone with access to that email viewed both the emails and the accompanying contracts, electronically signed them, and later viewed the completed contracts, which were sent to Moonwalkers in a separate email.

Simply put, the electronic trail created by DocuSign provides information that would not have been available before the digital age — the ability to remotely monitor when other parties to a contract actually view it.” (at 586-587, emphasis added)

Interestingly, the Court also noted that the owner of Moonwalkers had previously used DocuSign to contract with BAMS on behalf of another business he owns, and was thus familiar with the DocuSign workflow, seemingly supporting the evidence of his intent.

Though the Court of Appeals agreed with the lower court that it need not consider any question of the signer’s identity (as Moonwalkers’ actions had ratified the agreement in any event), it left little doubt how it would have ruled on that question. It specified that Moonwalkers’ “two lengthy affidavits” provided no explanation of how an unauthorized agent could have accessed Moonwalkers’ email account or altered DocuSign’s records—the accuracy of which was never in dispute.

While no contracting platform can preclude all challenges to the enforceability of an underlying agreement, leveraging DocuSign, the world’s #1 e-signature solution, part of its broader System of Agreement platform can not only provide a legally valid signature but also a standardized evidentiary trail that can help resolve certain related challenges on a summary basis.

This enables organizations to lay such issues to rest without delay or the expense of in-person testimony or trial.

Visit the eSignature Legality Guide at https://www.docusign.com/how-it-works/legality/global.

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